Appellant was tried by a military judge sitting
alone as a general court-martial at Mannheim and Kaiserslautern, Germany,
in May and June of 1997. In accordance with her pleas, she was found guilty
of larceny and conduct unbecoming an officer, in violation of Articles
121 and 133, Uniform Code of Military Justice, 10 USC §§ 921
and 933. She was sentenced to a dismissal. On August 8, 1997, the convening
authority approved this sentence, and the Court of Criminal Appeals affirmed
in an unpublished decision. United States v. Frelix-Vann, No. 9701014
(Army Ct. Crim. App. April 9, 1999).

On October 28, 1999, this Court granted review
on the following issue:

WHETHER THE SPECIFICATION OF CHARGE I, LARCENY,
IS A LESSER-INCLUDED OFFENSE OF THE SPECIFICATION OF CHARGE II, CONDUCT
UNBECOMING AN OFFICER BY COMMITTING LARCENY, AND IS THEREFORE MULTIPLICIOUS.We hold that appellant’s conviction of larceny
is multiplicious for findings with her conviction of conduct unbecoming
an officer by committing larceny, and one must be set aside. SeeUnited States v. Cherukuri, 53 MJ 68 (2000) (two convictions under
Articles 133 and 134, UCMJ, for same act cannot be legally sustained);
seegenerallyBall v. United States, 470 U.S. 856
(1985); United States v. Teters, 37 MJ 370 (CMA 1993). However,
because these offenses were considered multiplicious for sentencing, we
order no sentence relief. United States v. Britton, 47 MJ 195, 199
(1997).

Appellant pleaded guilty to the following offenses
at her court-martial:

CHARGE I: Violation of the UCMJ, Article
121.

SPECIFICATION: In that Captain Francis L. Frelix-Vann,
United States Army, did, at Vogelweh Post Exchange and Annex, building
#2013, Kaiserslautern, Germany, on or about 24 January 1997, steal
a package of dog bones, a "Die Hard with a Vengence" video cassette, "Alien
Nation" video cassette, "Predator 2" video cassette, "New Edition" compact
disc, "LL Cool J" compact disc [of some value], a black figurine
with instrument, and a Arista message cut off of a value of over $100.00
the property of Army and Air Force Exchange Services.

(Emphasis added.) Appellant was found not guilty
of stealing the lined through items.

The Court of Criminal Appeals succinctly described
the facts of this case:

Appellant, a reserve officer, came on full-time
active duty in 1991. In 1994, she received nonjudicial punishment under
the provisions of Article 15, UCMJ, for shoplifting at Tripler Army Medical
Center in Hawaii. The charges in this case resulted from a shoplifting
incident in 1997 at the Vogelweh Army and Air Force Exchange Service store
(AAFES) near Kaiserlautern [sic], Germany. Appellant entered the AAFES
building and purchased several items. She then walked to the AFFES Annex
located in a tent adjacent to the main facility. She exited the Annex tent
without paying for three videotape cassettes, two music compact discs,
and a package of dog bones.

The two specifications at issue contained similar
language in alleging the misconduct that was the basis for the two offenses.
She entered pleas of guilty at her court-martial. During the providence
inquiry, appellant agreed that the elements of the charged offenses accurately
described her misconduct. She admitted stealing the items from the exchange,
and also agreed that her conduct was wrongful, dishonorable, and unbecoming
an officer and a gentlewoman. Pursuant to a defense motion, the military
judge treated the offenses as multiplicious for sentencing.

Unpub. op. at 2 (footnote omitted).

___ ___ ___

The granted issue in this case asks whether
separate convictions can be sustained for larceny, in violation of Article
121, UCMJ, and conduct unbecoming an officer by committing the very same
larceny, in violation of Article 133, UCMJ. 1
In United States v. Cherukuri, supra, this Court recently
held that two convictions could not be sustained for an Article 134, UCMJ,
violation and an Article 133, UCMJ, violation based on the same act. SeealsoUnited States v. Rodriguez, 18 MJ 363, 369 (CMA 1984).
We think the same conclusion is required for dual convictions for the same
act under Articles 133 and 121, UCMJ. SeealsoUnited
States v. Timberlake, 18 MJ 371 (CMA 1984).

The appellate court below generally opined
that separate convictions could be sustained in this situation because
each offense had a different statutory element of proof. It then reasoned
that larceny requires proof of criminal conduct, while conduct unbecoming
an officer requires proof of acts or omissions which may not be criminal
in their own right. We are not persuaded that this elemental distinction
is accurate (seeUnited States v. Foster, 40 MJ 140, 146
(CMA 1994) (holding that realistic approach to elements analysis required))
or legally sufficient to infer that Congress intended separate convictions,
at least where the criminal conduct is also the sole basis for the conduct
unbecoming charge. SeeUnited States v. Waits, 32 MJ 274,
275 (CMA 1991); United States v. Taylor, 23 MJ 314, 318 (CMA 1987);
United States v. Deland, 22 MJ 70, 75 (CMA 1986); United States
v. Timberlake, supra.

United States v. Teters, 37 MJ 370,
as it has been applied in subsequent cases, leads to the same conclusion.
That decision obviously was not the last word on the subject of multiplicity.
In United States v. Weymouth, 43 MJ 329, 340 (1995), this Court
eschewed a strict statutory elements analysis in all cases. This Court
said:

59. To summarize our holdings on the law
of lesser-included offenses and multiplicity: in United States v. Teters,
supra, we adopted the elements test of Schmuck v. United States
[,489 U.S. 705 (1989),] and Blockburger v. United States, [284 U.S.
299 (1932),] . . . ¶¶ 8 and 9; in United States v. Foster,
supra, ¶ 34, we clarified that elements in the lesser offense
that are "legally less serious" than elements of the greater offense are
included elements; today we clarify that, in the military, those elements
required to be alleged in the specification, along with the statutory elements,
constitute the elements of the offense for the purpose of the elements
test.In view of the specifications before us, it is
clear that the crime of larceny was alleged as the sole basis for the unbecoming
an officer specification. In this context, Para. 59c(2), Part IV, Manual
for Courts-Martial, United States (1995 ed.), established that the elements
of larceny are necessarily included or required elements of the conduct
unbecoming offense. It states:Thus, a commissioned officer who steals property
violates both this Article and Article 121. Whenever the offense charged
is the same as a specific offense set forth in this Manual, the elements
of proof are the same as those set forth in the paragraph which treats
that specific offense, with the additional requirement that the act or
omission constitutes conduct unbecoming an officer and gentleman.(Emphasis added.) 2

Moreover, under United States v. Teters,
supra, since only one offense (conduct unbecoming by committing
larceny) has a different element than the other (larceny), these offenses
were not separate. SeeUnited States v. Cherukuri, 53 MJ
at 71.

This type of charging situation is in no way
unique to military law. In Whalen v. United States, 445 U.S. 684,
693-95 (1980), the Supreme Court addressed a similar question with regard
to felony murder and the underlying felony. It stated:

In this case, resort to the Blockburger
rule leads to the conclusion that Congress did not authorize consecutive
sentences for rape and for a killing committed in the course of the rape,
since it is plainly not the case that "each provision requires proof of
a fact which the other does not." A conviction for killing in the course
of a rape cannot be had without proving all the elements of the offense
of rape. SeeUnited States v. Greene, 160 U.S. App. D.C.
21, 34, 489 F.2d 1145, 1158 (1973). Cf. Harris v. Oklahoma,
433 U.S. 682, 682-683. The Government contends that felony murder and rape
are not the "same" offense under Blockburger, since the former offense
does not in all cases require proof of a rape; that is, D.C. Code §
22-2401 (1973) proscribes the killing of another person in the course of
committing rape or robbery or kidnapping or arson,
etc. Where the offense to be proved does not include proof of a rape—for
example, where the offense is a killing in the perpetration of a robbery—the
offense is of course different from the offense of rape, and the Government
is correct in believing that cumulative punishments for the felony murder
and for a rape would be permitted under Blockburger. In the present
case, however, proof of rape is a necessary element of proof of the felony
murder, and we are unpersuaded that this case should be treated differently
from other cases in which one criminal offense requires proof of every
element of another offense. There would be no question in this regard if
Congress, instead of listing the six lesser included offenses in the alternative,
had separately proscribed the six different species of felony murder under
six statutory provisions. It is doubtful that Congress could have imagined
that so formal a difference in drafting had any practical significance,
and we ascribe none to it.8/ To the extent that the Government’s
argument persuades us that the matter is not entirely free of doubt, the
doubt must be resolved in favor of lenity. SeeSimpson v. United
States, 435 U.S. 6, 14-15; seealso n.10, infra.

8/ Contrary to the view of the dissenting
opinion, we do not in this case apply the Blockburger rule to the
facts alleged in a particular indictment. Post, at 708-712. We
have simply concluded that, for purposes of imposing cumulative sentences
under D.C. Code § 23-112, Congress intended rape to be considered
a lesser offense included within the offense of a killing in the course
of rape.

(Emphasis added.)

The appellate court below attempted to support
its contrary conclusion in this case by citing older cases from our Court
which sustained convictions of offenses under Article 133, UCMJ, and other
codal articles. It stated:

It is significant that neither Timberlake
nor Waits mention, discuss, or overrule the many older cases affirming
convictions under the separate punitive articles and Article 133, UCMJ,
for the same act. SeeUnited States v. Howe, 17 USCMA 165,
37 CMR 429 (1967)(proper to convict officer of both Article 88 and Article
133 for single act of using contemptuous words against the President; offenses
multiplicious for sentencing); United States v. Giordano, 15 USCMA
163, 35 CMR 135 (1964)(proper to convict officer of violation of Articles
92 and 133 for improper loan sharking activity with enlisted men); United
States v. Middleton, 12 USCMA 54, 30 CMR 54 (1960)(proper to convict
an officer of false official statement under Article 107 and Article 133
for single act of submitting a false efficiency report; offenses are multiplicious
for sentencing).Unpub. op. at 5. It also cited a Board of Review
decision in "United States v. Coons, 7 CMR 381 (ABR 1952)(proper
to convict officer for larceny and conduct unbecoming for single act of
shoplifting), pet. denied, 8 CMR 178 (1953)."

We note, however, that the decision of the
Supreme Court in Ball v. United States, 470 U.S. 856, broke new
ground in the area of double jeopardy law. There, an accused was found
guilty of violating two federal statutes, 18 USC § 922(h)(1) and 18
USC App. § 1202(a)(1) for possessing the same weapon. The Supreme
Court set aside one of the convictions, relying on the Blockburger
rule to discern Congress’ intent with respect to separate convictions under
these overlapping statutes. Then, it held clearly for the first time that
the second unauthorized conviction must be set aside because it "has potential
adverse collateral consequences that may not be ignored." Id. at
865.

This 1985 holding by the Supreme Court conflicted
with earlier decisions of our Court, like United States v. Middleton,
12 USCMA 54, 58-59, 30 CMR 54, 58-59 (1960), and the other cases cited
by the appellate court below. As indicated in Middleton, supra,
they clearly followed the earlier view of this Court that even multiplicious
specifications could be affirmed:

Ordinarily, it is not prejudicial to the
accused to allow the court-martial to return a finding on each of the multiplicious
charges, if the separately alleged charges are not made the basis for separate
punishment. In other words, unreasonable multiplication of charges usually
raises a question affecting the sentence, not the findings. United
States v. Posnick, 8 USCMA 201, 24 CMR 11. This is not to say that
unreasonable multiplication may never affect the findings. The exaggeration
of a single offense into many seemingly separate crimes may, in a particular
case, create the impression that the accused is a "bad character" and thereby
lead the court-martial to resolve against him doubt created by the evidence.
No such contention, however, is made in this case, and the record of trial
does not present any such risk. The Government established, and the accused
judicially admitted, all the essential facts, except one, required to prove
the charges; the exception was the accused’s intent to deceive. That issue
was present in each of the specifications. Consequently, it was impossible
for the court to reach first a finding of guilty on one or more of the
multiplicious charges which could cause it to decide against the accused
an essential element in another of the charges, merely because the findings
already reached showed him to be a "bad character." Thus, if the accused
was prejudiced by denial of the motion to dismiss, the prejudice was confined
to the sentence.(Emphasis added.) That view of multiplicity of
criminal convictions has not survived Ball v. United States, supra.
3SeeUnited States
v. Teters, 37 MJ at 373.

The remaining question before us is which conviction
should be set aside to cure the multiplicity error in this case. Cf.
United States v. Cherukuri, supra at 74 (Government given
option to choose one specification under Article 133, UCMJ, or four specifications
under Article 134, UCMJ). Conduct unbecoming an officer is an extremely
serious offense whose commission strikes at the very core of leadership
and integrity in our armed services. SeegenerallyUnited
States v. Maderia, 38 MJ 494, 496-97 (CMA 1994); United States v.
Frazier, 34 MJ 194 (CMA 1992). Moreover, it is clearly the greater
offense in terms of having an additional element of proof than larceny.
See Para. 59b(2), Manual, supra. Nevertheless, consistent
with Cherukuri, supra, we leave to the Government the decision
which conviction to retain. SeeUnited States v. Deland,
22 MJ at 75. No additional sentence relief is required, however, because
the military judge correctly treated these offenses as multiplicious for
sentencing. (R. 10) SeeUnited States v. Britton, 47 MJ at
199.

The decision of the United States Army Court
of Criminal Appeals is reversed. The record of trial is returned to the
Judge Advocate General of the Army for remand to that court for action
consistent with this opinion.

FOOTNOTES:

1 Appellant, at trial,
objected that these offenses were multiplicious for sentencing. (R. 10,
29-30) We conclude that the failure to object at trial on the basis of
multiplicity for findings did not forfeit appellant’s multiplicity claim,
in light of the facial duplicativeness of these charges. SeeUnited
States v. Harwood, 46 MJ 26, 28 (1997).

2 The
current version of this Manual provision is identical.

3 We expressly
reject the suggestions of the separate opinion below that Ball v. United
States, 470 U.S. 856 (1985), does not apply at courts-martial, or that
United States v. Teters, 37 MJ 370 (CMA 1993), prohibits the application
of Whalen v. United States, 445 U.S. 684 (1980), in the military
justice system.

CRAWFORD, Chief Judge (dissenting):

I dissent because the majority treats Article
133 as a residual offense, that is, if an offense is charged and results
in a conviction under another article, it may not be separately charged
and result in a conviction under Article 133. Under a statutory elements
test or a pleading elements test, Article 121 and Article 133 are not multiplicious.
SeeUnited States v. Quiroz, No. 00-5004, ___ MJ ___ (2001)(Crawford,
C.J., dissenting); seealsoBall v. United States,
470 U.S. 856 (1985).